Citation Nr: 18151872 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 10-47 250A DATE: November 20, 2018 ORDER A compensable rating prior to February 11, 2016 and a rating in excess of 10 percent thereafter for a left hand disability, to include a thumb disability, is denied. A compensable rating for a right hand disability, to include a thumb disability, is denied. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Prior to February 11, 2016, the Veteran’s left hand disability was not manifested by a gap of one to two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. From February 11, 2016, the Veteran’s left hand disability was not manifested by a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 2. The Veteran’s right hand disability is not manifested by a gap of more than two inches between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 3. The Veteran’s service-connected disabilities, as a whole, render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for compensable rating for a left hand disability prior to February 11, 2016 and in excess of 10 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003, 5228. 2. The criteria for compensable rating for a right hand disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003, 5228. 3. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1982 to December 2007. Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain without accompanying functional limitation cannot serve as the basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). The Veteran’s right and left hand disabilities are currently rated under DC 5228 which applies to limitation of motion of the thumb and assigns a noncompensable rating for a gap of less than one inch (2.5cm) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating is assigned for a gap of 1 to 2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. A 20 percent rating is assigned when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers. There is no differentiation between the ratings assigned for the major and minor hands under DC 5228. In a November 2010 statement, the Veteran reported his flexion of his hands was very limited. The Veteran said his bilateral hand condition flared up three to four times per week, making it difficult for him to hold things. The Veteran reported his condition also made it difficult to drive to work as the condition caused tingling, his hands and arms to fall asleep, and would awaken him often at night. In his August 2015 appeal, the Veteran stated his left thumb range of motion had deteriorated to the point where it was painful to touch the ring finger and he could not touch his pinky finger at all. Additionally, the Veteran said he had difficulty holding and grasping things. The Veteran said he was unable to open screw on lids and his thumb ached throughout the day. The Veteran stated his job required typing and his bilateral hand disability negatively impacted his ability to do so. The Veteran also had difficulty holding his steering wheel due to the pain. Left Hand Disability The Veteran is currently in receipt of a noncompensable rating prior to February 11, 2016 and a rating in excess of 10 percent thereafter for his left hand disability. The Veteran contends his left hand disability is worse than his assigned ratings show. The Veteran was afforded an examination for his left hand disability in November 2011. The Veteran had decreased strength, decreased dexterity, locking, stiffness, and flare ups that were precipitated by physical activity. The examiner found no objective evidence of thumb pain after repetitive use testing, no gap between thumb pad and finger, no additional loss of range of motion after repetitive use, and no ankylosis in his left hand. The Veteran was afforded another examination in February 2016. The Veteran reported pain, aching, difficulty opening things. The examiner noted the Veteran’s abnormal range of motion in his left hand due to the Veteran’s reduced range of motion of his thumb with no gap between thumb pad and finger. However, the examiner noted there was no additional loss of range of motion after repetitive use. The examination was conducted during a flare up of the Veteran’s left hand and pain, weakness, fatigability, or incoordination did significantly limit the Veteran’s left hand functional ability. The examiner reported the Veteran did not have ankylosis in his left hand. The Veteran was afforded another examination for his left hand disability in March 2017. The Veteran did not report flare ups and the examiner opined the Veteran’s range of motion was normal, even after repetitive use testing. The examiner reported there was no gap between the pad of the thumb and the Veteran did not have ankylosis in his left hand. In a September 2017 examination, the examiner opined the Veteran’s range of motion was normal with no gap between the pad of the thumb and the finger. The Veteran had pain with repetitive motion but it did not result in or cause functional loss. The Veteran did not have ankylosis in his left hand. The objective evidence of record does not indicate the Veteran’s left hand disability warranted a higher 10 percent rating prior to February 11, 2016 as the evidence does not show the Veteran had a gap of one to two inches between his thumb pad and fingers. The evidence does not show the Veteran is entitled to a higher 20 percent rating from February 11, 2016 as the objective evidence of record does not show the Veteran suffers from a gap of more than two inches between his thumb pad and fingers. Right Hand Disability The Veteran is currently in receipt of a noncompensable rating for his right hand disability. The Veteran claims his disability is worse than shown by his current noncompensable rating. The Veteran was afforded an examination for his right hand disability in November 2011. The examiner noted the Veteran had decreased strength in regard to pushing, twisting, and pulling. The examiner opined the Veteran did not suffer from ankylosis and noted there was no gap between the thumb pad and the right index fingertip with no objective evidence of thumb pain, but after three repetitions, there was pain on attempt but no additional limitations of the thumb. There was no additional loss of range of motion due to pain, fatigue, weakness, lack of endurance, or incoordination. The Veteran was afforded an examination in February 2016. The Veteran reported pain, aching, and difficulty opening things. The examiner found the Veteran had normal range of motion in his right hand with no gap between the pad of the thumb and finger. The examiner noted the Veteran did not have additional loss of range of motion after repetitive use testing and opined pain, weakness, fatigability, and incoordination did not significantly limit functional ability with flare ups in the Veteran’s right hand. The examiner reported the Veteran did not have ankylosis in his right hand. The Veteran was afforded another examination for his right hand disability in March 2017. The Veteran did not report flare ups. The examiner opined the Veteran’s range of motion was normal, even after repetitive use testing. The examiner reported there was no gap between the pad of the thumb and the finger and no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The Veteran did not have ankylosis in his right hand. In a September 2017 examination, the examiner opined the Veteran’s range of motion was normal with no gap between the pad of the thumb and the finger. The Veteran had pain with repetitive motion but it did not result in or cause functional loss. The Veteran did not have ankylosis in his right hand. The objective evidence of record does not show the Veteran is entitled to a higher 10 percent rating for his right hand disability as the evidence does not show the Veteran has limitation of motion in his thumb with a gap of one to two inches between the thumb pad and the fingers. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Specifically, the Board has considered whether the Veteran would be entitled to a compensable rating for his left hand disability prior to February 11, 2016 and a compensable rating for his right hand disability under DC 5003. DC 5003 provides a 10 percent rating for arthritis with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. The Board has reviewed the evidence of record and while a February 2008 x-ray report noted the Veteran had arthritis in one joint, the evidence does not support a finding that two or more major or minor joint groups are affected. The Veteran’s record did not contain other evidence of a finding of joint arthritis that would warrant a compensable rating. Therefore, a 10 percent rating under DC 5003 is not warranted. Regarding all the above, the Board acknowledges and has considered the Veteran’s statements that his condition bothers him, causes him pain, discomfort, trouble typing, gripping, working, driving, and that he believes his disabilities warrant a higher rating. The Board also recognizes the Veteran continues to seek medical treatment for these conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is important for the Veteran to understand that the medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that his disabilities warrant a higher disability rating, providing a highly clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claims. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). TDIU The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2016). The Veteran’s total combined disability rating is 90 percent disabling as of January 1, 2008 with the Veteran’s sleep apnea rated as 50 percent disabling. As such, the Veteran met the schedular requirement for TDIU under 38 C.F.R. § 4.16(a) as of January 1, 2008. In addition to sleep apnea, the Veteran is service connected for sinusitis, migraines, arthritic changes to his bilateral acromioclavicular joint, a left hip sprain, repetitive bilateral ankle sprains, a foot disability, tinnitus, bilateral hand disabilities, a rib injury, and a heart disability. The Veteran previously worked as a project manager. For the reasons explained below, the Board finds the Veteran’s service-connected disabilities render him unemployable. A February 2008 examiner opined the Veteran’s sleep apnea had significant effects on his ability to work in that the Veteran had increased tardiness and decreased productivity due to fatigue. The examiner also opined the Veteran’s foot conditions caused him significant effects in occupational activities including weakness, pain, and fatigue. In a November 2011 examination, the Veteran reported his sinusitis made it hard to think and his carpal tunnel syndrome makes it difficult for him to type, write, and limited his ability to work. An April 2013 examiner opined the Veteran’s headaches didn’t impact his ability to work. In this same examination, the Veteran reported his tinnitus and bilateral hearing loss impaired his ability to work in that it made it difficult for him to hear others in meetings. An August 2014 examiner noted the Veteran’s sinus condition impacted his ability to work. A February 2016 examiner opined the Veteran’s bilateral hand disability interfered with Veteran’s ability to work in that he had pain when typing. A March 2017 examiner noted the Veteran had not lost any time from work. However, the Veteran said due to his disabilities, he had been assigned different duties, had increased tardiness, increased absenteeism, impaired mobility, decreased manual dexterity, and pain. A September 2017 examiner opined the Veteran’s disability lead to occupational impairment in that the Veteran was limited in excessive gripping. While none of the examiners opined the Veteran was unable to work, the Board finds that the evidence, when taken as a whole, shows the Veteran’s service connected disabilities render him unable to maintain gainful employment as his disabilities render him unable to type, have led to increased absenteeism, and he has difficulty hearing in his meetings. His education and prior experiences, along with the problems he now has, suggest that these disabilities, at this time, will cause him many problems keeping employment. Therefore, a TDIU will be granted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel